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UPDATE: Although the offending language was removed (see below) in response to questions from a reporter for phillymag.com,Â DRPA spokesperson, Tim Ireland issued a follow-up statement, saying â€œamateur photographers and members of the general public may be stopped and asked who they are, what theyâ€™re doing and why theyâ€™re doing it.â€

******On 1/18/12 Mickey H. Osterreicher sent a follow-up letter to DRPA President & CEO John J. Matheussen,Â asserting that photography by itself is not a suspicious activity.

****** As of 1/12/12 the language that NPPA complained about in the very first bullet point, which states, â€œIndividuals observed filming or photographing passing trains, locomotives, freight cars, passenger cars, rail yard operations, tracks, bridges, tunnels, commuter rail trains, subway trains, transit trains, stations and platformsâ€ has been removed from the PATCO website.

NPPA this week voiced its objection to the Port Authority Transit Corporation (PATCO) posting on its website that photography is a suspicious activity. In a strongly worded letterÂ to Delaware River Port Authority of Pennsylvania and New Jersey (DRPA) Chairman, the Hon. Tom Corbett, NPPA general counsel, Mickey H. Osterreicher, said â€œon behalf of NPPA and its members, I strongly object to PATCOâ€™s depiction of photography as â€˜suspiciousâ€™ or somehow being equated to terrorist activities.â€Â According to its website, DRPA â€œis a regional transportation agency serving the people of Southeastern Pennsylvania and Southern New Jersey.â€ It owns and operates the Benjamin Franklin, Walt Whitman, Commodore Barry, and Betsy Ross bridges. PATCO is a DRPA run subsidiary.

At issue is the language contained on the â€œSafety & Securityâ€ page of the PATCO website (http://www.ridepatco.org/safety/suspicious.html). Specifically, the wording at the top of that page entitled â€œWhat Should I Consider Suspicious?â€ on which the very first bullet point states, â€œIndividuals observed filming or photographing passing trains, locomotives, freight cars, passenger cars, rail yard operations, tracks, bridges, tunnels, commuter rail trains, subway trains, transit trains, stations and platforms.â€
NPPA has previously pointed out to numerous groups and law enforcement agencies that photography in all its forms (still, film, digital and video) are First Amendment-protected activities and should not be considered suspicious absent articulable facts and circumstances that support the suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism or other crimes.

According to Osterreicher â€œthe practice by government officials to question, detain and interfere with lawful behavior by photographers under the guise of preventing terrorist activities has become a daily occurrence and has resulted in a significant increase in the harassment and arrest of photographers nationwide.â€Â The letter went on to say that â€œthe abridgement of a constitutionally protected form of expression because of that erroneous belief is only reinforced by your specific reference to photography as being part of some sinister act or pernicious activity.â€Â As in other instances NPPA is gravely concerned that by placing the words â€œindividuals observed filming or photographingâ€ at the top of PATCOâ€™s list of activities the public should â€œconsider suspiciousâ€ it has unnecessarily and unconstitutionally planted the seed that photography is a distinctly suspect pursuit. NPPAÂ takes the position that the PATCO web page, targeted at the general public, creates â€œa climate that chills free speech under the pretext of safety and security.â€

To provide a little background into the often unknown and often times overlapping labyrinth of government agencies established to combat terrorism, the Information Sharing Environment (ISE) was established by the Intelligence Reform and Terrorism Prevention Act of 2004. According to its website â€œthe Program Manager was granted government wide authority to plan for, oversee the implementation of, and manage the ISE. Click here to learn more about the Background and Authorities of the ISE.â€Â Language found in the ISE – Suspicious Activity Reporting (SAR) Criteria Guidance table lists and defines â€œphotographyâ€ as â€œtaking still or moving pictures of sensitive locations within a facility that have no apparent aesthetic value (e.g., personnel, security camera or guard locations, equipment, systems, emergency evacuation instructions), etc.â€ NPPA argues that PATCO has broadened even this misplaced definition into one that fails â€œas a reasonable time, place and manner restriction because it limits far more speech than is necessary to serve a substantial government interest.â€

The letter referenced past NPPA advocacy efforts such as working with Amtrak to develop reasonable guidelines concerning photography for both the public and its employees (see: http://tinyurl.com/y8uzseh) and concluded with NPPAâ€™s offer to work with PATCO â€œto help develop appropriate guidelines and implement proper training in order to avoid these situationsâ€ and thatÂ PATCO remove â€œphotographyâ€ from its list of suspicious activities.

Copies of the letter were sent to Sean Elliot, NPPA President; U.S. Department of Homeland Security (DHS) Secretary, Janet Napolitano; and Ed Barocas,Â Legal Director of the NJ ACLU.